TMI Blog2019 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 12.09.2014 [ 2015 (3) TMI 431 - ALLAHABAD HIGH COURT ] and therefore the questions framed in the instant revision would be squarely covered by the said judgment. Revision dismissed. - Trade Tax Revision No. - 17 of 2012 - - - Dated:- 20-11-2019 - Alok Mathur, J. For the Revisionist : C.S.C. For the Opposite Party : Amitabh Mani ORDER ALOK MATHUR, J. Heard Sri Rohit Nandan Shukla, learned Standing Counsel, appearing on behalf of the revisionist and Mr. Amitabh Mani, learned counsel for the the respondent. The learned Standing Counsel for the State has filed the revision assailing the order of the Tribunal. However, at this juncture he is confining his arguments only on the three issues, that is classification of the 'Parachute Oil' 'Medikar' and 'Revived Instant Starch' which has been settled by this Court in favour of the assessee. Those three issues are as under:- i. Whether the learned Tribunal was justified in holding that the parachute Coconut oil falls within the category of 'oil of all kinds' wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. VAT Act, 2008 mentions edible oil and oil cake therefore if Parachute pure coconut oil which is marked as edible on its packaging cannot be lebeled as hair oil and therefore an unclassified item liable to tax at 12.5% it must necessarily be classified as edible oil under Entry no. 43 of Schedule II Part A and therefore, in my opinion would be liable to tax at 4% and not as an unclassified item taxable at 12.5%. So far as the issue of 'Medikar' is concerned, Sri Yogesh Chandra Srivastava cited para 10,12, and 16 which are being reproduced herein below : 10. There can be no dispute over the proposition of law laid down in the aforesaid authority. The thrust of the matter is how the courts have treated a particular product for the purpose of classification under the excise law and what status is to be given. The issue of anti-lice treatment arose in Collector of Central Excise v. Pharmasia (P) Ltd.8 . The tribunal reproduced the label appearing on every bottle of Mediker. The label is reproduced below:- Mediker ANTI-LICE TREATMENT DIRECTION FOR USE Shampoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can be micromacro organism, insects, worms, bacteria, etc. Any preparation containing active ingredients to remove the root causes, whether they are used for internal consumption or external application has to be considered as a medicament. Therefore, we conclude that Mediker is a medicament. We further observe that the medicinal use of the product is not its subsidiary function but is the only function. Be it noted, the order passed by the tribunal was assailed in Civil Appeal No. 3220 of 1990 and this Court had dismissed the Civil Appeal in Collector of Central Excise, Hyderabad v. M/s Pharmsia Pvt. Ltd.[1996 (83)ELT A 178 (SC)] 16. The aforesaid analysis makes it absolutely clear that Mediker which is used for anti-lice treatment is a drug because of its medicinal affect. This position has been accepted by this Court. Once it is a drug, it cannot be a shampoo. As a natural corollary, it will not invite the liability of levy of entry tax. This Court in TTR No. 153 of 2011 M/s Marico Ltd. Vs. The Commissioner, Commercial Taxes U.P. Lucknow and other connected matters in respect of 'Revived Instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3505.10 which mentions dextrines and other modified starches Section 70 of the U.P. VAT Act provides for allotment of commodity code and provides that in respect of any entry of any Schedule of the Act, the State Government may prepare a list of commodities which shall be deemed covered under the said entry of the said Schedule and may on the basis of harmonized system of nomenclature as adopted by the Government of India under the Central Excise Tariff Act, 1985 allot commodity code to the commodities so vested. However, in this revision, the revisionist has not sought the benefit of Section 70 of the U.P. VAT Act but is rather relying upon the Entry 118 which mentions Starch as a commodity and therefore liable to tax at 4%.. Shri Sanjeev Shankdhar, learned counsel for the Revenue rebutting the submissions of the learned senior counsel, on the other hand, submitted that Starch in Entry 118 of the Schedule II, Part A must necessarily be read collectively with Sago and Sabudana and that since Sago and Sabudana are edible items therefore the Starch included in Entry 118 would necessarily mean edible starch and not Revive St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edible form by heating or parching without any addition of ingredients or appreciable changes in chemical composition. The term rice is wide enough to include rice in its various forms whether edible or inedible. Rice in the form of grain is not edible Parched rice and puffed rice are edible. But, the entry rice seems to us to cover bothy forms of rice. At any rate, it is wide enough to cover them. In paragraph 8 of the said judgment the Supreme Court further held as under:- We do not think that it is fair to so interpret a taxing statute as to impute an intention to the legislature to go on taxing what is virtually the same product in different forms over and over again. Such a result would be contrary to basic axioms of taxation. Unless the language of the taxing statute was absolutely clear, it should be given an obviously unfair interpretation against the assessee. The learned senior counsel for the revisionist has also referred to the judgment of the Supreme Court in the case of Mauri Yeast India Pvt. Ltd. Vs. State of U.P. and another reported in 2008 U.P.T.C. 729 wherein the Supreme Court has held that if ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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